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Jim and Dorothy and
their boat "Oceanus" under "Harbour Arrest"
in Bundaberg.

Modern Day Wrecking
in Australia
by
Jim and Dorothy Manzari
SV Oceanus
Bundaberg, Australia

Since ancient times all seafarers have
feared shipwreck. Even today with modern charts and GPS the worst
nightmare of a modern-day ocean cruiser is the possibility to
be shipwrecked on a strange and unfriendly coast. In times past
professional wreckers moved navigation markers or lights so ships
would be lead on to a reef or spit of rocks. The wreckers would
then loot the ship. Whole villages at various times in history
thrived on this gruesome trade. Now the wreckers and looters
move the law to set traps for the unsuspecting seafarer.

This is a a story of modern-day wrecking
at its best. It is the story of how the Australian Customs Service
and the Australian Consular Service bureaucracies recklessly
mislead our boat on to the judicial reefs of Australia.

Our voyage began six years ago in Germany,
when we purchased a small steel sailboat to use in our retirement.
Our plan was to sail around the world. Dorothy is a citizen of
Switzerland and Jim is an American. We had lived for nearly twenty
years in Switzerland after returning from a previous stint of
sailing in South America and the Caribbean. We have both been
long-term sailors since before we met on a passage from Bermuda
to the Chesapeake Bay back in the middle 1970s. We are both retired
from many years working in the information technology field and
were looking forward to fulfilling our dream of sailing around
the world. Thirty years ago we purchased and sailed a small boat
to South America from Great Britain. Those six years spent in
some of the world's best cruising grounds convinced us that a
voyage around the world would be a rewarding project for our
retirement.

This story of ship wrecking begins with a visit to the Australian
Consulate in Noumea the capital city of French New Caledonia.
We had heard a few stories about how bureaucratically difficult
Australia had become for visiting private yachts. Many cruising
couples had warned us to stay away from Australia. An Austrian
couple who have been cruising in the South Pacific region for
fifteen years told us that they no longer visit Australia, because
every time they had arrived they were treated like criminals
by Customs and other officials. We heard a story of a sailor
who was sailing directly from New Caledonia to Madagascar, more
than 6000 nautical miles, without touching Australian waters
and to avoid the intimidation experienced by other visitors.

In spite of the heavy-handed behavior by
Customs we will go away from Australia with a very good impression
of the people. Everyone we've met has been very friendly and
supportive. Bundaberg is a wonderful town with its many shops,
palm trees, and bird life. Sadly we've been essentially under
boat arrest since arrival, so we have not been able to see other
parts of the country.

In spite of what others had told us, we
believed that if we were armed with proper information and instructions
obtained from official Australian Government sources we could
safely visit Australia to wait out the cyclone season before
continuing our voyage to South Africa and beyond. How wrong we
were!

On August 22 of last year we made the long
hot walk across the city of Noumea to pay a visit to the Australian
Consulate. We expected to receive up-to-date information from
this source regarding visa and other regulations. We wanted to
make sure we complied with Australia's requirements for a visiting
private yacht. We found that the Consulate had only one copy
of a undated document titled "Information for Yachts Travelling
to Australia". This document was produced and published
by the Australian Customs Service, the Quarantine Service, and
Australian Immigration Department.

The Consular clerk was very reluctant to
do the work necessary to make a copy of this 30-page document,
but after some insistence on our part she agreed. This document
was not dated. There was no way for us to determine if it was
up-to-date. We rightfully assumed the Consulate would provide
us with correct and timely information. This became a crucial
issue in our subsequent legal battle with Australian Customs.

This document gave us four methods to report
our impending arrival to Customs and Quarantine. We elected to
use the first method listed. The first method given was to report
at the port of intended arrival, Bundaberg, by calling a radio
station call sign VMR 488 on VHF channel 81. The impending arrival
report, according to this document, must be made at exactly 48
hours (this turned out to be wrong) prior to estimated time of
arrival. This is similar in every aspect to the method we used
the previous year when reporting impending arrival to Customs
in New Zealand. The person or committee in the Australian Government
who wrote this document must have known that VHF marine radio
cannot be used beyond a point where line-of-sight communications
can be established.

It should be noted according to International
Law the Flag State dictates the type of radio (if any) that is
required to be carried by ships under its flag. Our boat, Oceanus,
is a US flag recreational vessel and is not required to carry
any kind of radio whatsoever. With the exception of EPIRB, we
have heard the same is true of recreational vessels flagged by
Australia. The choice of radio type is completely optional for
foreign-going recreational vessels in both countries. In more
than twelve accumulated years of sailing throughout the world
we have never found the need for more than a simple hand-held
VHF radio.

We found after arriving in Bundaberg and
being charged with violating the Custom Act that a new up-to-date
"Information for Yachts Travelling to Australia" document
has been published by Customs, Quarantine, and Immigration. This
new document offers only three methods for reporting impending
arrival. VHF radio is no longer an option. Had we seen the up-to-date
document and its reporting instructions we would have reported
prior to departure from Noumea, since we have none of the equipment
needed to communicate by email, fax, or telephone from sea.

This new up-to-date document is dated October
2005. We're are still mystified why this up-to-date document
was not handed to us in Noumea. The new document had been published
by Customs nearly a year before we visited the Consulate. Our
dispute with Customs concerns the timing and method of reporting
our impending arrival and the different instructions given in
these two conflicting documents.

It needs to be emphasized that Customs
hadn't gotten off their collective backsides two months after
we became enmeshed in this dispute. In spite of the fact that
the front-line Customs officer stated on the day of our arrival
that the old document had been subsided and was no longer valid.
In spite of a lengthy submission given to Customs by our solicitor
pointing out the mistaken information in the out-of-date document
and the new reporting methods in the new document, no one in
Customs had bothered to inform the Consulate in Noumea that they
were still handing out the wrong document until at least November
of 2006, two months after charging us. Canadian friends of ours
visited the Consulate in early November 2006 and were given the
same defective and out-of-date document that caused us so much
trouble.

We discovered on the day after we arrived
in Australia Customs and Quarantine published an authoritative
Hydrographic Service Notice to Mariners amending the List of
Radio Signals instructing ships without fax to report at the
port of intended arrival just as we have done. Obviously ships
were having the same difficulty reporting with the mandatory
signature when they did not have a shore-side agent to do the
work. This is the fundamental problem in the way that Customs
attempts to bend the requirements of the Customs Act to apply
to both commercial ships and private yachts.

The lack of distinction between ships with
their shipping agents, ship service companies, and shore-based
computer communication facilities, and pleasure craft without
any of these capabilities is at the root of our difficulties
with Customs. Add to this mix the abysmally poor information
given to the public outside Australian, even by official sources
such as the Consular Service, and one can easily understand why
our situation arose. We are the experimental guinea pig to resolve
this muddle in the implementation of the Customs law through
the court system.

We have been prosecuted for reporting to
no one prior to arrival in Bundaberg. This ignores the fact that
we followed the Customs instructions to the letter and reported
to VMR 488 on channel 81. We asked VMR to please report us to
Customs and Immigration as is the standard practice throughout
the world. VMR then asked us a series of questions which were
obviously items of information that VMR intended to past to Customs
and Quarantine announcing our arrival.

The prosecution convinced the magistrate
that we had made no report to any official government agency!
The prosecution argued successfully that VMR 488 is only a volunteer
organization and not an official arm of the Australian government.
This is in spite of long-standing agreements between Volunteer
Marine Rescue Inc. and the local Customs and Quarantine officials.
This is in spite of the fact that the government has shutdown
all official radio stations along this coast.

As a result we have been convicted of a
serious crime attracting a 9 month prison sentence or fine of
$4,000 and prosecution costs of $15,000. Our personal legal costs
are now approaching $40,000.

The Australian Customs Service made many
mistakes in their rush to prosecute. We discovered, unfortunately
too late to use in our defense at trial, that the offense we
were charged with should not have been prosecuted at all!

In 2001 the Australian Parliament under
pressure from shipping companies and import brokers amended the
Customs Act to downgrade impending arrival reporting infractions
to the level of Infringement Notice. The relevant section of
the Customs Act is titled "Penalty in lieu of prosecution".
This would have given us 28 days to write directly to the CEO
of Customs giving exonerating evidence of why we were mislead
into committing the infraction. In all likelihood the CEO would
have agreed that we were mislead by the out-of-date document
and would have withdrawn the infringement notice. That would
have been the end of the matter.

Had the CEO disagreed with our reasoning,
we would have paid a penalty of about $1300. And the right of
Customs to prosecution would be extinguished. By law there would
be no publicity or criminal stigma attached to the payment of
this penalty.

As far as we can determine Queensland Customs
is the only region in Australia that is prosecuting the weakest
targets they can find. We have been told by many sailors that
if we had arrived in Coffs Harbour this dispute would not have
happened. The front-line Customs personnel would have used their
discretion to understand the misleading instructions given in
the out-of-date document. At most they might have issued an infringement
notice.

It must be noted that we are not unfamiliar
with procedures for entry into a foreign country by private pleasure
craft. We have accumulated more than twelve years experience
on two different boats in almost all the oceans of the world.
Jim served honorably for four years in in the US Coast Guard
and has several years of experience on a research vessel. We
have in the past entered and cleared from more than 25 countries
without any kind of problem.

Furthermore, we strongly believe all countries
have a moral and legal right to protect their borders from illegal
activities. Movement across the border into and out of a nation
state has always been controlled, so far as possible. A core
function of any state is to protect its own political authority
and to protect the society under its authority. For most threats,
that protection requires control of the border. Conceptually,
this protection is integral to the notion of the political sovereign
and political authority.

Powers that might not be justified as part
of the normal citizen/state relationship within a society may
well be justified at the border, because of this integral protective
responsibility. This does not mean the power is without limits.
All power is subject to the law and to general considerations
such as human rights protection, reasonableness, the laws of
natural justice and so forth.

Our dispute with Australian Customs arises
where over-zealousness, inadequate or poor training, misunderstanding
and misapplication of the Customs Act, mismanagement, incompetence,
or malicious enforcement by a front-line Customs officers in
Queensland creates a situation where the probability is very
high that innocent persons will be prosecuted for something that
is not their fault.

Once the legal system begins rolling down
hill it is virtually impossible to stop. Its like an avalanche
destroying everything in its path. Reason and logic, common sense
and basic fair play all get plowed under by the legal rush to
judgment. Our solicitor believes there are a number of substantial
grounds for appeal and we have therefore filed an appeal.

Many readers will wonder why we didn't
just plea guilty like the two or three other prosecutions here
in Queensland and continued on our way. There are two reasons.
First, we do not like being marked as a criminal. We have managed
to live to be 65 years of age without breaking the law. In our
65 years of life we've grown accustomed to our good reputation.
Our good name actually means something to us.

Secondly, we discovered within a day or
two of arrival in Australia, Customs operates an international
watch list for terrorists, drug smugglers, and other so-call
"persons of interest". We had fear that our names and
the name of our boat would be placed on this watch list if we
were convicted of a border violation. That would have had serious
long-term consequences with regard to continuing our voyage around
the world. More than twenty-five countries have access to this
database, including the USA.

In the interests of sound border security
there are a large number of things wrong with prosecuting the
wrong people, a prosecution that is founded on an issue of incorrect
and misleading information handed out by government departments.
Wasting time on the wrong people, persons who have been vetted
and issued a visa as acceptable to enter Australia, is a failure,
not a success, of the border security system. Wasting taxpayers
money over what is essentially administrative infractions that
should be dealt with by the Infringement Notice scheme is a failure
of the border security system. We are still mystified as to what
is the objective in prosecuting the weakest possible targets.
Alienating the very people who could help Australia protect its
borders is a very poor public policy.